Jai Singh vs Prithi Singh and Others

A.L. Vaidya, J.—Sh. Roda the predecessor-in-interest of the Respondents 1 to 4 along with Respondent No. 5 filed a suit for declaration and injunction on the allegations that Sh. Dallu, grandfather of the Plaintiff, was the owner in possession of the suit land. This Dallu as per Plaintiffs was having four sons, namely Tulsi, Mela, Roda and Khushia and one daughter Rakho. After the death of Dallu, his entire property devolved upon his sons and daughter. Mella, Khushia and Tulsi died issue less and, therefore, father of the Plaintiffs inherited their share in the suit property. It was also pleaded that Defendants and their mother Kartari procured a forged will of the share of Sh.Khushia in their favour. However, it was claimed that Kartari was not at all related to Sh. Khushia. Plaintiffs claim themselves to be the owners in possession of the suit land and as such sought declaration to that effect. As a consequential relief permanent injunction was asked for.

Alternative case of the Plaintiffs as pleaded has been that in case will was proved to be a genuine document, in that event, Defendants had no more right than the share of the Plaintiffs in the suit land. The Defendants contested the suit and issues had been framed.

After the evidence had been recorded, the Plaintiffs preferred a petition under. Order VI, Rule 17 of the Code of Civil Procedure, seeking permission to include the pleadings regarding nature and basis of rights claimed by them. The amendment sought to be introduced in the plaint was as under:

(1) After paragraph No. 1 new para as para No. 1 (a) requires to be added:

That the predecessors in interest of the father of the Plaintiffs No. 1 to 4 Sh. Dallu who was the owner of this property and on whose death the parties to the suit are now recorded as owners had his sons S/Sh. Mela, Roda and daughter Smt. Rakho and upon the death of Sh. Mela being issueless Sh. Roda father of the Plaintiffs and Smt. Rakho being brother and sister from their mother Smt. Basanti succeeded to his estate in preference to Sh. Khushia and Sh. Tulsi who are sons of Smt. Asso, the first wife of Sh. Dallu after whose death he had remarried Smt. Basanti the mother of Sh.Roda and Smt.Rakho. Therefore 1/5th share of Sh. Mela devolved upon Sh. Roda father of the Plaintiffs and Smt. Rakho, thus the Plaintiffs and Smt. Rakho are owners to the extent of 1/2 share of the property recorded in the Jamabandi wherein the entries have been made fraudulently which are contrary to facts. Neither Sh. Kbushia nor Sh. Tulsi or Smt. Bhago got any right to the estate of Sh. Mela.

(ii) That after the death of Smt. Bhagwanti alias Bhago widow of Sh. Tulsi the Plaintiffs alone their father succeeded to her estate and thus the share of the Plaintiffs and Smt. Rakho is 4/5 in the suit land excepting 1/5th share of Sh. Khushia which too is owned by the Plaintiffs.

This application has been resisted on behalf of the Defendants on various grounds. The trial Court after hearing the parties, allowed the amendment vide order dated 20th September, 1994. The ,aforesaid order has been assailed in the present revision petition on various grounds.

I have heard the learned Counsel for the parties and have also minutely scrutinised the entire record.

There is no dispute to the proposition that under Order VI, Rule 17, CPC the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Originally she Suit filed by the Plaintiffs was for declaration that they were owners in possession of the entire suit land, but in the alternative it was pleaded that in case will was proved genuine then the Defendants have no ignore right than the equal share of the Plaintiffs in the suit land, and in that event Defendants were directed not to construct anything over the suit land and remove the already constructed portion of Chapper from the suit land till the partition was effected.

Through the proposed amendment Plaintiffs amended the pleadings to this effect that they were entitled to the entire suit land and they had in the proposed amendment pleaded factual side to that effect and in the alternative in the proposed amendment instead of Defendants being entitled to 112 share, it has been sought to be pleaded that Defendants on the basis of the will would be entitled to 1/5th share of Sh. Khushia.

It has been contended on behalf of the Petitioners that by allowing such amendment nature of the suit would be altogether changed. I think such ah inference cannot be made out from the circumstances present in this case. In the original suit as well as after the proposed amendment, Plaintiffs'' simple case had been that they Were exclusive owners in possession of the suit land. It is only in the alternative, the proposed amendment if allowed would not at all change the nature of the suit but only affect shares to be claimed by the Plaintiffs and shares which would be available for the Defendants on the basis of the will, in case same is proved to be a genuine one. Otherwise, suit remains even in the alternative that property was joint of the parties only shares have been specified in the proposed amendment. This amendment will not at all change the nature of the suit. There is no doubt that Plaintiffs in the proposed amendment have pleaded factual side as to how they were the exclusive owners in possession of the suit land and also in the alternative in case of will having been proved to be a genuine document, what would be the share of the Plaintiffs and Defendants in that event ? The basic nature of the suit that in the alternative also property in suit would remain joint of the parties has not been changed by the proposed amendment. Learned Counsel for the Petitioners has tried to take some help from Kenchegowda (Since Deceased) by Legal representatives Vs. Siddegowda alias Motegowda, I think the ratio of the ruling will not be applicable to the facts of the present case. In the reported case not only proposed amendment was pertaining to the specific share claimed but for partition of the suit property, which amendment had been allowed but was intervened by the Apex Court, which came to the conclusion that such amendment could not be allowed and a preliminary decree for partition passed by the High Court, could not be so done especially when suit for partition, when all the joint family properties not made the subject matter of the suit nor the co-sharers impleaded, was not legally maintainable. In the present case, insofar as jointness of the property is concerned, that relief in the alternative remains the same only shares have been pleaded as referred to above. This 1994(4) Supreme Court Cases, 294 (supra) is not at all, as such, applicable to the facts of the present case.

It has been argued on behalf of the Petitioners that on the basis of evidence on record, more so that of the statement of Roda, the manner of inheritance as being pleaded by way of amendment was Contrary to the aforesaid statement. It may be referred here that even if some evidence was there, the main dispute would be on some proved facts, who would be the legal heirs under the Succession Act. In that view of the matter, in case facts being pleaded by way of amendment are legally proved then alone the applicability of law would come into picture and the Plaintiff''s case would be disposed of in view of that, On the other hand, the factual side pleaded if not proved, applicability of law of succession would depend upon the legal proof of factual side particularly relation being proved of the parties to their predecessor-in-interest. In this view of the matter also statement even if made by Roda will not come in the way of disposing of the matter effectively between the parties.

No other point has been stressed.

11 In view of the foregoing reasons, I do hot find any illegality in the order, under reference, and accordingly dismiss the present revision petition. Parties are left to bear their own costs.

Records be sent to the trial Court without any undue delay. Parties are also directed to appear before the trial Court on 30th may, 1995.

C.M.P. No. 256 of l994.

No orders, in view of the disposal of the main revision petition.